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Duru v. Baker

United States District Court, N.D. Texas, Dallas Division

April 26, 2018

ROSE ADANMA DURU, Plaintiff,
v.
JANA S. BAKER, et al., Defendants.

          FINDINGS, CONCLUSIONS AND RECOMMENDATION

          IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE

         By Special Order No. 3-251, this pro se case has been automatically referred for judicial screening. Before the Court is the plaintiff's Application to Proceed In District Court Without Prepaying Fees or Costs, filed March 22, 2018 (doc. 3). Based on the relevant filings and applicable law, the application should be DENIED, and the case should be dismissed for failure to prosecute or follow court orders.

         I. BACKGROUND

         On April 19, 2016, the pro se plaintiff filed this action and submitted an application to proceed in forma pauperis (IFP). (See docs. 3, 5.) By order dated April 6, 2018, the Court found that the application reflected enough assets with which to pay the $400 filing fee, and it gave the plaintiff fourteen days to pay it. (see doc. 6.)[1] The order also specifically warned that failure to timely pay the filing fee would result in a recommendation that leave to proceed in forma pauperis be denied, and that the case be dismissed. Id. More than fourteen days have passed, but the plaintiff has not paid the fee or filed anything else in this case.

         II. IN FORMA PAUPERIS

         Whether to permit or deny an applicant to proceed in forma pauperis is within the sound discretion of the Court. Prows v. Kastner, 842 F.2d 138, 140 (5th Cir. 1988); 28 U.S.C. § 1915(a). Courts should make the assessment of financial ability after considering whether payment of the filing fee will result in the plaintiff “suffering undue financial hardship.” Prows, 842 F.2d at 140. “This entails a review of other demands on individual plaintiffs' financial resources, including whether the expenses are discretionary or mandatory.” Id.

         The plaintiff's application states that she has $1, 467.00 in a checking account. It does not list any dependents, and the listed average monthly household expenses total $ 270.00. The plaintiff has not shown that she will suffer undue financial hardship after payment of the $400.00 filing fee, [2]and her motion to proceed in forma pauperis should be denied.

         III. INVOLUNTARY DISMISSAL

         Rule 41(b) of the Federal Rules of Civil Procedure permits a court to dismiss an action sua sponte for failure to prosecute or follow orders of the court. McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988) (§ 1983 prisoner action). This authority flows from a court's inherent power to control its docket, prevent undue delays in the disposition of pending cases, and avoid congested court calendars. Link v. Wabash R.R. Co., 370 U.S. 626, 629-31 (1962). By order dated April 6, 2018, the plaintiff was given fourteen days to pay the filing fee. She was specifically warned that failure to do so would result in a recommendation that leave to proceed in forma pauperis be denied, and that the case be dismissed. Because she failed to comply with an order that she pay the filing fee because she had sufficient assets with which to do so, this case should be dismissed.

         IV. RECOMMENDATION

         The plaintiffs application to proceed in forma pauperis should be denied, and this case should be dismissed without prejudice under Fed.R.Civ.P. 41(b) for failure to prosecute or follow court orders, unless she pays the filing fee within the time for objecting to this recommendation or some other deadline set by the Court.

         INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT

         A copy of these findings conclusions and recommendation shall be served on all parties in the manner provided by law Any party who objects to any part of these findings conclusions and recommendation must file specific written objections within fourteen days after being served with a copy See 28 USC ยง 636(b)(1); Fed R Civ P 72(b) In order to be specific an objection must identify the specific finding or recommendation to which objection is made state the basis for the objection and specify the place in the magistrate judge's findings conclusion, s and recommendation where the, disputed determination is found An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific Failure to file specific written objections will bar the aggrieved party from appealing the factual ...


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